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USMC | DRB | 2009_Marine | MD0901240
Original file (MD0901240.rtf) Auto-classification: Denied

ex-, USMC
Current Discharge and Applicant’s Request
Application Received: 20090408
Characterization of Service Received:
Narrative Reason for Discharge:
Authority for Discharge: MARCORSEPMAN

Applicant’s Request:      Characterization change to:
         Narrative Reason change to:

Summary of Service

Prior Service:
Inactive:         USMCR (DEP)       20031110 - 20040617     Active:  

Period of Service Under Review:
Date of Current Enlistment: 20040618     Age at Enlistment:
Period of E nlistment : Years Months
Date of Discharge: 20080207      H ighest Rank:
Length of Service : Y ea r ( s ) M on th ( s ) 20 D a y ( s )
Education Level:        AFQT: 88
MOS: 2831
Proficiency/Conduct M arks (# of occasions): ( ) / ( )    Fitness R eports:

Awards and Decorations ( per DD 214):      Rifle (Iraq)


NJP:
- 20050720 :       Article 92 ( Failure to obey an order )
         Article 86 ( UA 20050708-20050711 (3 DAYS) )
         Awarded : Susp ended:

- 20050901 :       Article 9 2 ( Failure to obey an order ) , 5 specifications
         Awarded : Susp ended:

- 20070418 :       Article 9 2 (D isobeyed a lawful order )
         Awarded : Susp ended:

- 20070725 :       Article 92 ( Willfully d isobeyed regulation)
         Article 86 (UA 0615, 20070711 from platoon formation)
         Awarded : RESTR RIR Susp ended: NONE
SCM:

SPCM:

CC:

Retention Warning Counseling :

- 20050721 :       For poor judgment , disobedience to orders, and lack of integrity resulting in Command level NJP of 20050720 for violation of Articles 92 and 86.
- 20050901 :       For poor judgment and lack of obedience to orders as a result of multiple violation of your company level restriction, you were found guilty at company level NJP on 20050901 for violation of Article 95 x 5.
- 20051123 :       For exceeding the posted speed limit.
- 20070312 :       For violation of Article 92 failure to obey a lawful order
- 20070419 :       For poor judgment and disobedience to orders resulting in Battalion level NJP of 20070419 for violation of Article 92.
- 20070517 :       For violating Article 108 of UCMJ.
 - 20070725 :       For poor judgment and disobedience to orders resulting in Battalion level NJP on 20070725 for violation of Article 86 and 92.
 - 20070 9 25 :       For failure to obey order or regulation, by not checking in for restriction at the prescribed time

Administrative Corrections to the Applicant’s DD 214

The NDRB did note administrative error(s) on the original DD Form 214:

         “ UNDER OTHER THAN HONORABLE CONDITIONS ”
        
The NDRB will recommend to the Commandant of the Marine Corps that the DD 214 be corrected as appropriate.
Types of Documents Submitted/reviewed

 Related to Military Service:
                  DD 214:            Service / Medical Record:            Other Records:   

Related to Post-Service Period:  
         Employment:               Finances:                 Education /Training :     
         Health/Medical Records:           Substance Abuse:                  Criminal Records:       
         Family/Personal Status:                   Community Service:                References:     
         Additional Statements :
                   From Applicant:            From Representat ion :               From Congress member :    

         Other Documentation :

Pertinent Regulation/Law

 A. Paragraph 6210, MISCONDUCT , of the Marine Corps Separation and Retirement Manual, (MCO P1900.16F), effective 1 September 2001 until Present.

B. Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part II, Para 211, Regularity of Government Affairs , Part V, Para 502, Propriety and Para 503, Equity .



DEPARTMENT OF THE NAVY
NAVAL DISCHARGE REVIEW BOARD (NDRB)
DISCHARGE REVIEW DECISIONAL DOCUMENT

Applicant’s Issues

 1.       Should have received a medical discharge due to his mental health.
2. Command did not follow recommendation of medical officers for medical discharge.
3. Company commander would not allow him to have a medical board.
 4. PTSD mitigates conduct        

Decision


 Date: 20 0 9 1204            Location: Washington D.C .         R epresentation :

By a vote of the Characterization shall .
By a vote of the Narrative Reason shall MISCONDUCT .
Discussion

 The NDRB, under its responsibility to examine the propriety and equity of an Applicant’s discharge, is authorized to change the character of service and the reason for discharge if such change is warranted. In reviewing discharges, the Board presumes regularity in the conduct of g overnment al a ffairs unless there is substantial credible evidence to rebut the presumption, to include evidence submitted by the Applicant . The Applicant’s record of service included 6105 counseling warnings, for o f the Uniform Code of Mil itary Justice (UCMJ): Article 92 (Failure to obey an order or regulation, 8 specifications), Article 86 (Unauthorized absence , 2 specifications). Based on the offense(s) committed by the Applicant, command administratively processed for separation. When processed , the Applicant exercised rights to consult with qualified couns el and request an a dministrative b oard. The Applicant waived his right to submit a written statement. On 19 October 2007, an administrative discharge board determined that the Applicant be discharge d due to a pattern of misconduct and that the characterization of his discharge be Under Other Than Honorable Conditions .

: (Decisional) ( ) . The Applicant contends that he should have received a medical discha rge due to his mental health and that his command did not follow the recommendation of medical officer s for a medical discharge. Medical record entries from 27 June 2007 reflect a long history of de pression, inability to focus, difficulty following directions, impulsivity and low motivation as far back as the Applicant could remember in his youth . The NDRB did note in the Applicant’s record that a medical officer recommended the Applicant’s admin istrative separation for erroneous enlistment in 2007 due to his childhood mental health history ; the Applicant was not recommended for a medical discharge as he contends. The Applicant’s command discussed administrative separation due to erroneous enlistment with medical personnel , but did not pursue this option due to the Applicant’s continued misconduct. The NDRB found the Applicant’s contention to be without merit.

: (Decisional) ( ) . The Applicant contend s that his company commander would not allow him to have a medical board. The NDRB presumes regularity in the conduct of governmental affairs unless there is substantial credible evidence to rebut the presumption, to include evidence submitted by the Applicant. The r ecord shows that the Applicant’s command was very involved and informed regarding his mental health condition and tried to assist the Applicant. The Applican t submits no documentation to refute this evidence or to rebut the NDRB’s presumption of regularity in the conduct of governmental affairs. Again, there is no record of a medical officer recommending the Applicant’s appearance before a medical board.

: (Decisional) ( ) . The Applicant contends that he had PTSD which mitigates his misconduct. T he Applicant’s medical record includes his diagnosis with ADHD and PTSD —possibly attributable to an alleged sexual assault by another recruit during recruit training. His PTSD was not considered to be deployment related as evidenced by a medical record entry on 30 July 2007. The NDRB could find no informat ion in the Applicant’s record regarding the alleged sexual assault incident during recruit training . Again, t he record also reflects that the Applicant’s command was involved in his treatment as evidenced by comments in the medical record referring to conversations between the medical officer and the Applicant’s First Sergeant on 29 Oct ober 2007 , during which the Applicant ’s treatment plan was discussed . The record indicates that the command attempted to assist the Applicant in every way, including changing his restriction check in times to accommodate his professed sleep problems due to his medication. Despite the command’s concessions, the Applicant continued to engage in misconduct. Medical providers noted within his record that , despite his PTSD and ADHD diagnos es , the Applicant was responsible for his behavior. Based on these medical assessments, the NDRB determined that the Applicant’s PTSD diagnosis did not mitigate his misconduct.

Summary: After a thorough review of the available evidence, to include the Applicant’s summary of service, record entries, and discharge process, the Board found Therefore, the awarded characterization of service shall and the narrative reason for separation shall remain .
The Applicant remains eligible for a personal appearance hearing for a period of fifteen years from the date of discharge. The Applicant is directed to the Addendum, specifically the paragraphs titled Additional Reviews, Automatic Upgrades, and Post-Service Conduct .]



ADDENDUM: Information for the Applicant

 Complaint Procedures : If you believe the decision in your case is unclear, not responsive to the issues you raised, or does not otherwise comport with the decisional document requirements of DoD Instruction 1332.28, you may submit a complaint in accordance with Enclosure (5) of that Instruction to the Joint Service Review Activity, OUSD (P&R) PI-LP, The Pentagon, Washington, DC 20301-4000. You should read Enclosure (5) of the Instruction before submitting such a complaint. The complaint procedure does not permit a challenge of the merits of the decision; it is designed solely to ensure that the decisional documents meet applicable requirements for clarity and responsiveness. You may view DoD Instruction 1332.28 and other Decisional Documents by going online at “ http://Boards.law.af.mil . ”

Additional Reviews : After a document review has been conducted, former members are eligible for a personal appearance hearing, provided the application is received at the NDRB within 15 years of the Applicant’s date of discharge. The Applicant can provide documentation to support any claims of post-service accomplishments or any additional evidence related to this discharge. Representation at a personal appearance hearing is recommended but not required. There are veterans organizations such as the American Legion and the Association of Service Disable Veterans that are willing to provide guidance to former service members in their efforts to obtain a discharge upgrade. If a former member has been discharged for more than 15 years, has already been granted a personal appearance hearing or has otherwise exhausted his opportunities before the NDRB, the Applicant may petition the Board for Correction of Naval Records (BCNR), 2 Navy Annex, Washington, DC 20370-5100 for further review.

 Service Benefits: The U.S. Department of Veterans Affairs (VA) determines eligibility for post-service benefits, not the NDRB. There is no requirement or law that grants recharacterization solely on the issue of obtaining veterans benefits and this issue does not serve to provide a foundation upon which the Board can grant relief.
Employment/Educational Opportunities : The NDRB has no authority to upgrade a discharge for the sole purpose of enhancing employment or educational opportunities. Regulations limit the NDRB’s review to a determination of the propriety and equity of the discharge.

 Reenlistment/RE-code: Since the NDRB has no jurisdiction over reenlistment, reentry, or reinstatement into the Navy, Marine Corps, or any other of the Armed Forces, the NDRB is not authorized to change a reenlistment code. Only the BCNR can make changes to reenlistment codes. Additionally, the NDRB has no authority to upgrade a discharge for the sole purpose of enhancing reenlistment opportunities. An unfavorable “RE” code is, in itself, not a bar to reenlistment. A request for a waiver can be submitted during the processing of a formal application for reenlistment through a recruiter.
Medical Conditions and Misconduct : DoD disability regulations do not preclude a disciplinary separation. Appropriate regulations stipulate that separations for misconduct take precedence over potential separations for other reasons. Whenever a member is being processed through the Physical Evaluation Board, and is processed subsequently for an administrative involuntary separation or is referred to a court martial for misconduct, the disability evaluation is suspended pending the outcome of the non-disability proceedings. If the action includes either a punitive or administrative discharge for misconduct or for any basis wherein an Other Than Honorable discharge is authorized, the medical board report is filed in the member’s terminated health record. Additionally, the NDRB does not have the authority to change a narrative reason for separation to one indicating a medical disability or other medical related reasons. Only the BCNR can grant this type of narrative reason change.

 Automatic Upgrades - There is no law or regulation that provides for an unfavorable discharge to be upgraded based solely on the passage of time or good conduct subsequent to leaving naval service.

Post-Service Conduct : The NDRB is authorized to consider post-service factors in the recharacterization of a discharge. Outstanding post-service conduct, to the extent such matters provide a basis for a more thorough understanding of the Applicant’s performance and conduct during the period of service under review, is considered during Board reviews. Documentation to support a post-service conduct upgrade includes, but is not limited to: a verifiable continuous employment record; marriage and children’s birth certificates (if applicable); character witness statements; documentation of community or church service; certification of non-involvement with civil authorities; evidence of financial stability or letters of good standing from banks, credit card companies, or other financial institutions; attendance at or completion of higher education (official transcripts); and documentation of a drug-free lifestyle. The Applicant is advised that completion of these items alone does not guarantee the upgrade of an unfavorable discharge, as each discharge is reviewed by the Board on a case-by-case basis to determine if post-service accomplishments help demonstrate in-service misconduct was an aberration and not indicative of the member’s overall character.

Issues Concerning Bad-Conduct Discharges (BCD ): Because relevant and material facts stated in a court-martial specification are presumed by the NDRB to be established facts, issues relating to the Applicant’s innocence of charges for which he was found guilty cannot form a basis for relief. With respect to a discharge adjudged by a special court-martial, the action of the NDRB is restricted to upgrades based on clemency. Clemency is an act of leniency that reduces the severity of the punishment imposed. The NDRB does not have the jurisdictional authority to review a discharge or dismissal resulting from a general court-martial.

Board Membership: The names and votes of the members of the NDRB Board are recorded on the original of this document and may be obtained from the service records by writing to:

 Secretary of the Navy Council of Review Boards
 Attn: Naval Discharge Review Board
 720 Kennon Street SE Rm 309
Washington Navy Yard DC 20374-5023

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